COURT FILE NO.: CR-21-60000255-00BR
DATE: 20210917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LWB
Applicant
Paul Leishman, for the Crown
Christopher Avery, for the Applicant
HEARD: September 14, 2021
Allen J.
REASONS FOR DECISION
(90-Day Detention Review under section 525 of the Criminal Code)
NATURE OF PROCEEDING
[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference. More recently, some in-person proceedings are being held in courtrooms. This matter proceeded by Zoom video. The accused, LWB, attended by Zoom from the Toronto South Detention. Counsel made submissions on legal issues.
BACKGROUND
[2] The accused, LWB, a 23-year-old Black male, was charged on May 19, 2021, with nine firearm charges, three possession of controlled substance charges and a proceeds of crime charge.
[3] On May 19th, the police observed LWB walking in a mall. He was seen carrying a black Tommy Hilfiger satchel over his shoulder which hung at his side. The police observed that LWB appeared to be displaying the characteristics of a person carrying a firearm. They thought the satchel carried a heavy item. The police state in their Synopsis that as LWB walked into retail stores, he continuously tapped or touched his satchel, they believed, to check whether the contents of the satchel were secure.
[4] LWB was then observed entering the front passenger seat of a car parked outside the mall. A female, who was later known to be LWB’s girlfriend, was driving the vehicle and another female sat in the rear passenger seat. The car was driven to an address and parked.
[5] Police officers approached the vehicle identifying themselves as police. As LWB was exiting the car wearing a black Tommy Hilfiger satchel he attempted to flee. The police subdued him. He was found in possession of what the police believed was cocaine, MDMA and carfentanil. They also recovered $425.00 (Cdn). LWB was arrested.
[6] At the current proceeding, Crown counsel indicated that he had just received a certificate of analysis indicating that the substance thought to be MDMA was actually fentanyl. Certificates of analysis for the other two substances have not been received by the Crown.
[7] The initial bail hearing was held on July 12th before a justice of the peace and an oral ruling, delivered on July 16th.
[8] The justice of the peace determined that the plan of release presented by the defence answered the primary and secondary ground issues. There were no primary ground issues raised. LWB presented a plan of supervision involving 24/7 house arrest, with electronic monitoring, his sister as residential surety and his father as a non-residential surety, both of whom in total making substantial financial pledges.
[9] The justice of the peace found that the plan satisfied the secondary ground but did not satisfy him that public confidence in the administration of justice would be maintained based on his determinations on the tertiary ground. The justice of the peace determined that: the Crown had a strong but not overwhelming case; that the dangerous drugs and loaded firearm charges amount to serious offences; that LWB faces a potentially lengthy sentence if convicted; and that the circumstances of LWB carrying a loaded firearm around in a public place with large quantities of highly addictive drugs was risky and dangerous conduct.
THE LAW
[10] Where an accused has been detained the court must review the detention. Concerning an indictable offence, s. 525 of the Criminal Code authorizes an automatic review of the terms of detention where the trial has been delayed for a period of more than 90 days. The purpose of s. 525 is to prevent accused persons from languishing for prolonged periods of time in custody and to ensure a prompt trial.
[11] The court is required to monitor the continued detention of the accused to ensure there is no unwarranted detention and to ensure there is no unreasonable delay in proceeding with the trial. The right to a detention review is available to detainees including those who have not had a previous bail hearing. Section 525 applies to those ordered detained under s. 515 on any of the three grounds of detention.
[12] The Supreme Court of Canada in R. v. Myers clarified the procedure and principles applicable to detention review proceedings.
• Unreasonable delay need not be established as a threshold condition for a detention review.
• The only threshold condition for a detention review under s. 525 is that the applicable 90-day time period has passed since the last detention decision was made.
• The accused need not apply or elect to have a s. 525 detention review. It is an automatic procedure that the jailer and judge are required to perform. The jailer must apply for a detention review immediately after the 90 days has passed.
• If an intervening detention order was made after an accused’s first appearance, then the time period starts from the date of that intervening detention order.
• When there has been a prior detention decision the review judge cannot simply uncritically “rubber-stamp” it.
• The review judge should in their analysis show respect for any findings of fact made by the first-level decision-maker if there is no cause to interfere with them.
[R. v. Myers, 2019 SCC 18, at paras. 44, 47, 62, 55 (S.C.C.)].
[13] The over-arching issue for consideration on review is whether the continued detention of an accused in custody is justified within the meaning of s. 515(10) of the Criminal Code and whether directions need to be given to expedite the trial: R. v. Myers, at para. [24]].
[14] Section 515(10) sets out the three grounds on which the detention of an accused in custody may be justified: (a) where it is necessary in order to ensure the attendance of the accused in court; (b) where it is necessary for the protection or safety of the public; and (c) where it is necessary in order to maintain public confidence in the administration of justice.
[15] Exercising the power to review a decision with respect to release will be appropriate in three circumstances: (a) where there is admissible new evidence which with due diligence was not available at the initial bail hearing; (b) where the impugned decision contains an error of law; or (c) where the decision is clearly inappropriate.
In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.
[R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 6 and 127-129 (S.C.C.) and; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (S.C.C.)].
[16] In determining whether the detention of the accused is still justified, the reviewing judge may consider: (a) any new evidence or change in the circumstances of the accused; (b) the impact of the passage of time; and (c) any unreasonable delay looked at in terms of the proportionality of the potential length of sentence. Reasons must be provided as to why continued detention is, or is not, justified: R. v. Myers, at paras. [50 and 51]].
THE ISSUES RAISED BY DEFENCE
[17] The defence takes the position that the continued detention of LWB is not justified owing to both unreasonable delay and errors of law in the original bail ruling.
Unreasonable Delay
[18] R. v. Myers directs the review judge to consider the proportionality of the passage of time in relation to the potential length of sentence. Not every delay in getting to trial will be unreasonable. There is no magic formula. The review judge must look to their own judgment and experience in determining what impact if any, the passage of time and an unreasonable delay could have on the continued detention of the accused.
This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted.
[19] The review judge can consider whether either party has been responsible for any unreasonable delay in getting to trial, whether an unreasonable delay can be assigned to one of the parties. If the Crown is responsible for unreasonable delay, this will weigh in favour of release: R. v. Myers, at para. [54]]. In looking at delay in getting to trial a prospective view can be employed:
In St-Cloud, the Court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71. In this sense, the analysis is not only retrospective, but also forward-looking.
[20] To date, 118 days have passed since LWB was arrested. The defence submits there has been unnecessary delay since LWB’s detention principally related to failures and delays in disclosure.
[21] The defence referred to many written requests to the Crown for disclosure of such materials as police notes, the Synopsis and certificates of analysis for the three substances seized. As noted earlier, the Crown advised at this proceeding that the analysis of the substance thought to be MDMA was certified to be fentanyl. There is no certification for the substances thought to be cocaine and carfentanil. Among other drugs, carfentanil is notorious as a very addictive, dangerous and deadly drug.
[22] The defence asserts that the delay has slowed down the process of moving the process along. Taking a forward-looking perspective to the matter, it is the defence’s view that pre-trial delay will slow the process of getting the matter to trial. The defence lays the fault for disclosure delays at the feet of the police and the Crown. There is no issue that the defence is responsible for any delay.
[23] The Crown cites the surrounding circumstances, particularly the difficult environment created by the pandemic, with posing barriers to the police undertaking many of their duties, not unlike the obstacles placed on other participants in the criminal justice system. The Crown must also rely on the promptness of third-party entities such as the Drug Analysis Service to deliver drug analysis results, putting delay by third parties out of the Crown’s hands.
[24] I do not think one can ignore the conditions of the pandemic as a factor in delay now and going forward until the conditions of the pandemic are lifted. This is a prominent factor in delay that can be assigned to neither the Crown, defence or the courts: [R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.)]. I do not find that delay, if any, that might be assigned to the Crown up to this point in time, can be regarded as unreasonable delay. I do not think under the circumstances that one can look forward and project that there will be unreasonable delay in getting to trial. It is premature to look at delay and the passage of time as having an impact on continued detention.
[25] Further, on the question of the proportionality of the passage of time to sentencing, given the seriousness of the possession of a loaded prohibited firearm, and at least fentanyl for sure, I do not find that the passage of time at this point is disproportionate to a potential sentence on the offences before the court.
[26] I do not see there is delay to this point that would have an appreciable impact on the continued detention of LWB.
Errors in Law on the Tertiary Ground
The Position of the Defence
[27] The defence cites errors of law in the following areas as bases for the review court to intervene on the justice of the peace’s decision to deny bail.
a) that the justice of the peace erred in finding that possession of carfentanil was an aggravating factor requiring detention when the substance thought to be carfentanil has not been certified as such;
b) the justice of the peace did not consider s. 493.2 of the Criminal Code which provides for consideration of the circumstances of persons from vulnerable populations; and
c) that the justice of the peace did not consider the conditions in the detention facility created by the pandemic and the effect of those conditions on LWB and his ability to prepare for court proceedings.
[28] I accept that the justice of the peace erred in aspects of his analysis on the tertiary ground which allows a review of his ruling on that ground.
Legal Considerations
[29] The court must consider whether the detention of the accused “is necessary to maintain confidence in the administration of justice”. The four factors under s. 515(10)(c) are well-known and are as follows:
(i) the apparent strength of the prosecution’s case;
(ii) the objective gravity of the offence in comparison with other offences in the Criminal Code;
(iii) the circumstances surrounding the commission of the offence, whether a firearm was used; and
(iv) whether the accused is potentially liable for a lengthy term of imprisonment.
[30] The court must weigh all relevant circumstances and after the balancing must consider the critical question of whether detention is necessary to maintain confidence in the administration of justice: [R. v. St-Cloud](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2036273107&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)), at para. [69]]. The court must keep in mind that a release of accused persons is the cardinal rule and detention, the exception: R. v. Myers, at para. [24]].
The Strength of the Crown’s Case
[31] The justice peace found the Crown’s case to be strong. I will not focus on that factor except to say that appears strong at this stage. But I will point out that the defence intends to bring applications under sections 8, 9 and 24 of the Charter of Rights, based on a claim of racial profiling, to challenge the lawfulness of the detention and search of his person and satchel. Whether the defence is successful in supporting those claims will have a decided effect on the viability of the Crown’s case going forward.
The Seriousness of the Offences
[32] The offences charged are clearly serious in comparison with other crimes. LWB carried a loaded prohibited firearm in a satchel into a public arena. He carried with him large amounts of highly addictive drugs. He was charged with possession of cocaine, MDMA and carfentanil in amounts suggestive of a commercial trafficking enterprise. It has been confirmed that what was suspected to be MDMA is in fact fentanyl. That is the only drug for which forensic analysis has been received. The results on cocaine and carfentanil are not yet available.
[33] The most serious of the offences are clearly the firearm charges. Among the drug offences, possession of carfentanil for the purpose of trafficking is the most serious. As noted earlier, it is a notoriously dangerous and addictive drug. I think I can take judicial notice that its use has resulted in large numbers of overdoses that tragically end in the death of many users.
[34] The justice of the peace did acknowledge that there was no certainty at the time of the bail hearing that the substance thought to be carfentanil was in fact carfentanil. However, there is a tacit presumption behind the words of his ruling that the substance is carfentanil, so much so that carfentanil is treated as an aggravating factor figuring against release. I find that error played a prominent role in the justice of the peace’s assessment of the seriousness of the offences and in his analysis of the circumstances surrounding the crimes when carfentanil had not been ascertained.
[35] That error alone does not persuade me to question continued detention. I must consider together the four enumerated factors under s. 515(10) and the facts related to those factors. No one factor is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified: [R. v. St-Cloud](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=2036273107&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)), at para. [69]].
Circumstances Surrounding the Commission of the Offences
Nature of the Crime and the Accused
[36] The list of circumstances that may be considered under s. 515(10)(c)(iii) is not finite. R. v. St-Cloud offers examples of possible circumstances surrounding the commission of the offence that involve looking at the nature of the crime and the nature of the victim.
[37] Factors that may be considered on the nature of the crime are:
… the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.
R. v. St-Cloud, at para. [61]]
[38] The fact that LWB carried a loaded prohibited firearm into a public venue where many people, including vulnerable persons and children, would be present, the gravity of that situation cannot be discounted. But graver still would be if the firearm had been discharged, if the criminal activity focused on particular vulnerable victims, if the crime involved gang activity or other persons. The offence did not involve an act of violence although a loaded firearm certainly portends that was a reasonable prospect.
[39] The personal circumstances of the accused may also be considered:
Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant.
R. v. St–Cloud, at para. [71]]
[40] Section 493.2 seeks to address the overrepresentation of certain groups in the criminal justice system and speaks specifically to persons disadvantaged in obtaining release.
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[41] R. v. St-Cloud directs that the personal circumstances of the accused, their age, criminal record, physical or mental condition, membership in a criminal organization, etc. may also be relevant. I add to that list whether the accused is a member of a racial group that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release.
[42] Section 493.2 was enacted to address concerns expressed some 20 years ago in a decision by Justice Trafford, as he then was, of this court: “Stereotypical assumptions, including those concerning young black men and narcotics, have no proper place in a properly conducted investigation”: [R. v. Peck, [2001] OJ No. 4581, at para. 27, (Ont. S.C.J.)].
[43] I find the justice of the peace erred in not giving due attention to the requirements of s. 493.2 He acknowledged in his ruling that LWB is a member the Black community, a member of a vulnerable population that is overrepresented in the criminal justice system and a member of a population that is disadvantaged in obtaining bail. However, he concluded that he is not persuaded by that fact that LWB should be released. His view was that “nothing in [LWB’s] personal background has been presented in this hearing to show he has personally suffered that disadvantage”: [Oral Ruling, pp. 8 and 9].
[44] LWB is a Black man. He is a 23-year-old young Black man. He has had an earlier interaction with the criminal justice system as a youth which resulted in two convictions. He has no adult convictions. There are no violations of court orders. The courts are beginning to address the issue of racial profiling and the experience of racial groups such as Indigenous and Black peoples in Canada’s criminal justice system. Judicial notice has been taken of that reality. The Supreme Court of Canada in R. v. Le took notice of the particular experiences of young Black men.
The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities. Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization.
[R v. Le, 2019 SCC 34, at para 79, (S.C.C.)].
[45] A recent decision by Justice Nakatsuru of this court stands out in its observations on this issue. Granted, Justice Nakatsuru was deciding sentence for a young Black male and did have the benefit of expert testimony and the scholarly works of witnesses who presented persuasive data and analyses of the history of systemic racism in the criminal justice system.
[46] Justice Nakatsuru observed:
While the distinct history of colonial violence endured by Indigenous peoples cannot simply be analogized to Black Canadians, I found that the ability to consider social context in a sentencing decision is extended to all under section 718.2(e) of the Criminal Code. This allowed me to consider the unique social history of Black Canadians in sentencing Mr. Jackson. Mr. Jackson was a Black male offender not too much older than you, who pleaded guilty to a charge of possession of a prohibited gun. His lawyers presented a great deal of evidence to me on systemic anti-Black racism and its role in Mr. Jackson’s life. I took note of this evidence. I also took judicial notice, independently of these materials, of the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians today. With an understanding of these social factors I was able to better appreciate the circumstances that led Mr. Jackson to come before me.
[R. v. Morris, 2018 ONSC 5186, at para. 9, (S.C.J.)]
[47] A bail hearing occupies a different place in the system from sentencing. Bail is at the beginning and sentencing is at the end. Bail hearings occur at the earliest stage of the criminal justice process when evidence is most often at a premium. And bail hearings are more informal proceedings where dependence on the rules of evidence and witnesses is relaxed.
[48] I do not have extensive information about LWB’s life. But I believe this is not necessary for me to observe that he is visibly a member of a population that is being adversely affected by over-policing and discriminatory biases and practices within the system.
[49] Accused persons before bail courts are innocent until proved guilty. The purpose of the bail system is to consider the prospect of release for remand accused as soon as possible with the evidence available at that stage. Black accused persons should not be deprived of the court’s attention to the systemic factors that might have brought them before the court because they have exercised their right to have their pre-trial custody reviewed at an early stage.
[50] The defence presented evidence they contend demonstrates that the police targeted LWB. Counsel played brief video recordings that, due to disclosure delays, I assume were not available for the bail hearing. The recordings capture LWB at the mall walking into a gas station and exiting. He has the Tommy Hilfiger satchel over his shoulder. He reaches his hand into the front pocket of his pants to retrieve money to pay for an item. The Synopsis prepared by the police summarizes as follows the basis of their suspicions that LWB was carrying a firearm:
The accused was wearing a black "Tommy Hilfiger" satchel which [sic] with the strap over his shoulder and the pouch on his side. The satchel appeared to be full and heavily weighted. As the accused walked from retail stores, he was observed removing his wallet and other items from his side pant pockets not utilizing the satchel. The accused was seen continuously touching/tapping his satchel as if to check that its contents are still secure.
[51] It was those observations that prompted the police to pursue LWB, detain him, conduct a search, and ultimately arrest him. The defence asserts racial stereotyping and racial bias against a young Black man prompted the police to find LWB’s conduct indicative of possession of a firearm.
[52] The defence points out that just because the satchel seemed heavy does not lead to the natural conclusion that it contained a firearm. It could contain any weighty thing. The defence points out that because LWB reached into his pocket for money rather than into the satchel does not mean he was trying to avoid exposing the contents of the satchel. Many men keep their money in their pockets. In the defence’s estimation, one would not logically conclude the satchel contained a firearm unless LWB were viewed through the lens of racial bias. The actions highlighted by the police permit innocent explanations. The defence made the further point, which I observed, that LWB did not in fact touch or tap his satchel at all in the recordings.
[53] There appears to be some cogency to the defence’s position. But it will ultimately be for the trial judge to consider the defence’s position on the totality of the record before the court at trial.
[54] Section 493.2 specifically calls for consideration of the impact on members of vulnerable populations in obtaining release. I find the justice of the peace erred in not giving consideration to this as a circumstance surrounding the commission of the offence and the arrest of LWB.
The COVID Virus in the Detention Facility
[55] The defence advances the pandemic as a surrounding circumstance that should be considered in this case. However, the defence did not provide any information on how the conditions at the Toronto South Detention Centre affect LWB differently than other inmates.
[56] It is true that the conditions are abominable in that facility with the constant lockdowns, incidents of periodic virus outbreaks and with the barriers presented for inmates communicating with counsel to prepare for court appearances. However, the defence has not demonstrated that LWB has a particular health or other vulnerability that could factor into a determination on his release.
[57] I do not consider the pandemic in determining release.
Potential Length of Sentence
[58] There is no question that, if convicted, LWB will face a lengthy sentence given the firearm offences, especially as they are combined with trafficking in highly addictive drugs. This has been recognized by courts as a particularly toxic combination due to the waves of violence engendered by those crimes which has led to sentences that express strong denunciation and deterrence.
CONCLUSION
[59] Considering the combined effect of all the factors under s. 515(10)(c)(iii) in the totality of the circumstances, my conclusion is that membership in a population that is disadvantaged in obtaining release is a personal circumstance surrounding the commission of the crime that must be considered in determining whether LWB’s continued detention is warranted.
[60] That factor, in conjunction with the justice of the peace’s treatment of carfentanil as an aggravating factor in applying the s. 515(10)(c) factors, persuades me that detention is not necessary in the interests of justice. With my conclusions on the tertiary ground, I find the strength of the plan of supervision on the secondary ground is sufficient to preclude a substantial likelihood that LWB will re-offend or interfere with the administration of justice. I conclude that detention of LWB is not necessary to maintain confidence in the administration of justice.
DISPOSITION
[61] LWB shall be released from the custody of the Toronto South Detention Centre.
RELEASE ORDER
[62] LWB shall be released from the Toronto South Detention Centre on the following terms:
(a) LWB shall reside under house arrest at his residential surety’s home, his sister NWB, at 9 Fraserwood Avenue, Unit 2D, North York, Ontario M6B 2N3 until Saturday, Sepember 18, 2021 at which time LWB will reside with NWB, at 9 Fraserwood Avenue, Unit 3B;
(b) He shall be present in the residence of his sister each night by 1:00 a.m. and is not leave before 5:00 a.m.;
(c) He shall be under 24-hour, 7-day per week house arrest only being allowed outside the residence if accompanied by one of his sureties;
(d) His second surety shall be his father, GB, who resides in a separate residence in North York, Ontario;
(e) The sister, NWB, shall post security for bail in the amount of $5,000.00 without deposit;
(f) The father, GB, shall post security for bail in the amount of $100,000.00 without deposit;
(g) A GPS ankle monitor shall be installed by a representative of Recovery Science Corporation at the Toronto South Detention Centre before LWB is released;
(h) LWB shall comply with all rules and procedures in relation to the monitoring services as set by Recovery Science Corporation;
(i) LWB is prohibited from having possession of a firearm as defined in the Criminal Code which includes any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
Allen J.
Released: September 17, 2021
COURT FILE NO.: CR-21-60000255-00BR
DATE: 20210917
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LWB
Applicant
REASONS FOR decision
Allen J.
Released: September 17, 2021